Appeal
by the plaintiff from an order of the Supreme Court, Kings
County (Robin S. Garson, J.), dated February 25, 2016. The
order granted the motion of the defendant Juan Acevedo to
restore to the calendar his prior motion to dismiss the
complaint insofar as asserted against him pursuant to CPLR
3211(a)(8) for lack of personal jurisdiction and to cancel
the notice of pendency against the subject property, and
thereupon, to grant the prior motion.

ORDERED
that the order is modified, on the law, by deleting the
provision thereof granting the prior motion of the defendant
Juan Acevedo to dismiss the complaint insofar as asserted
against him pursuant to CPLR 3211(a)(8) for lack of personal
jurisdiction and to cancel the notice of pendency against the
subject property, and substituting therefor a provision
denying the prior motion; as so modified, the order is
affirmed, with costs.

The
defendant Juan Acevedo (hereinafter the defendant) executed a
note that was secured by a mortgage on residential property
located in Brooklyn. Thereafter, the plaintiff, alleging that
it was the successor in interest to the lender, commenced
this action to foreclose the mortgage against the defendant,
among others. Service of the summons and complaint allegedly
was made on the defendant on July 26, 2013.

On
August 26, 2014, the defendant served a verified answer with
affirmative defenses and counterclaims, wherein he asserted,
inter alia, the affirmative defense of lack of personal
jurisdiction. By letter dated September 3, 2014, the
plaintiff, appearing by its former attorneys, wrote to the
defendant's attorney, stating that the verified answer
with affirmative defenses and counterclaims was rejected as
"excessively overdue and far beyond the time limits
mandated by the law." Then, on September 24, 2014, the
plaintiff, appearing by different attorneys, served a
verified reply to the counterclaims.

In
December 2014, more than 60 days after service of the
defendant's verified answer with affirmative defenses and
counterclaims, and more than 60 days after the plaintiff
served the defendant with a verified reply to the
counterclaims, the defendant moved to dismiss the complaint
pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction
based on improper service and to cancel the notice of
pendency against the subject property. The plaintiff opposed
the defendant's motion, arguing, among other things, that
the defendant waived the defense of lack of personal
jurisdiction based on improper service by failing to move for
judgment on that ground within 60 days after serving the
answer. This motion was marked off the calendar.

Subsequently,
the defendant moved to restore his prior motion to the
calendar, and thereupon, to grant the motion. The plaintiff
opposed the motion, again arguing, inter alia, that the
defendant waived this defense pursuant to CPLR 3211(e). The
Supreme Court granted the defendant's motion. The
plaintiff appeals.

Although
the Supreme Court properly granted that branch of the
defendant's motion which was to restore, the court should
not have thereupon granted his prior motion.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"[A]n
objection that the summons and complaint... was not properly
served is waived if, having raised such an objection in a
pleading, the objecting party does not move for judgment on
that ground within sixty days after serving the pleading,
unless the court extends the time upon the ground of undue
hardship" (CPLR 3211[e]). Here, the defendant failed to
move for judgment on the ground of lack of personal
jurisdiction based on improper service within 60 days after
his answer was served. Additionally, he failed to made an
adequate showing of undue hardship that prevented the making
of the motion within the requisite statutory period. Although
the plaintiff, appearing by its former attorneys, wrote to
the defendant&#39;s attorney, stating that the verified
answer with affirmative defenses and counterclaims was
rejected, this Court has indicated that a "purported
rejection of the defendants&#39; answer did not extend the
60-day time limit" (Dimond v Verdon, 5 A.D.3d
718, 719). Further, less than one month after the
defendant's verified answer with affirmative defenses and
counterclaims was served, the plaintiff's ...

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